The abuse of “controversial and cross-cutting”

There is no doubt that the question of border checks at Northern Ireland’s ports is controversial. The question is whether Edwin Poots has the ability to ignore the law of the United Kingdom?

Jamie Bryson argues that that section 20(4)(aa) of the Northern Ireland Act 1998 overrides the obligations of the Northern Ireland Protocol.  It isn’t in the Programme for Government, therefore it needs to be decided by the Executive.  However, Sinn Fein state that that decision was made by the Executive in July 2020, and that decision was that responsibility falls to the Minister for Agriculture, therefore the ministerial approval is in place, QED.

Yet at the same time – suppose the Executive were directed to do something it didn’t want to do [such as abortion? – Ed].  Not quite, because some parties are perfectly happy with those changes.  Anyway, the Assembly has the authority under section 5(6) to change the law about abortion so that the Executive no longer has to comply with section 9 of the Executive Formation Act 2019 or the regulations made under that act in Westminster.  [If it wants to?] Well, yes.

That’s the key point.

No matter how controversial the implementation of the Northern Ireland Protocol is, no matter how long the Executive spends discussing it, the Executive will continue to have the legal obligation to carry out checks at Northern Ireland ports.

Logically, and taking the Northern Ireland Act 1998 as a whole rather than cherry picking certain convenient sections, the sole issue that the Executive – or the Assembly at large – can legally consider is how to carry out their obligations to carry out checks under the Northern Ireland protoocol.

Indeed section 26 of the Act gives the Secretary of State for Northern Ireland the right to direct the relevant minister to carry out those obligations as determined by Parliament.  It is utterly inconceivable that section 20(4)(aa) of the Northern Ireland Act should have been intended to be used to frustrate the will of Parliament.

But what about consent?

Consent is irrelevant to reserved and excepted matters. Parliament is sovereign, and only Parliament can change the law regarding international trade. [If the other parties to the trade agreement are willing -Ed]  Shhhh.  The UK Government is still pretending it can tell the EU what to do, instead of what Maggie Thatcher did, which was to offer the right concessions to get the EU to agree to what she really wanted.

[Aside – I can’t abide Maggie Thatcher’s politics, but she was a woman of integrity.  If she made an international agreement, she could be relied on to stick to it.  The present lot… I just won’t go there.]

In any case, consider this.

The Government does not have my consent to increase the National Insurance rate that I and people less able to afford it have to pay, but it has the lawful authority to make that and other laws I do not like as long as Parliament agrees.  I can campaign for the law to change, I can try and persuade my own MP and others to support a change in the law, but until the law changes, I am stuck with the way things are, however unfair and unreasonable I believe the law is.

In the end, as I’ve noted before, it has come to a pretty pass when Sinn Fein become the guardians of the rule of law as determined by the Parliament of the United Kingdom and DUP representatives choose disloyalty to the Queen in Parliament.


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